What is Intellectual Property?

Even small children understand that “property”
is something that can be “owned,” and that an owner
has certain rights regarding that property. Adults
understand that ownership of property provides legal
rights that can be enforced in a court of law, if
necessary. Intellectual property is merely a special
class of property that differs from ordinary personal
or real property that you can see or touch; the
only real difference is that intellectual property
is created by the property owner’s mind. Various
statutes, both state and federal, have been enacted
to protect the rights of intellectual property owners
in their property.

Types of intellectual property

There are several different types of intellectual property. One type that touches our lives each day can be seen in writings and other expressions of authorship, whether books, newspaper and magazine articles, music, movies, advertising copy, and even computer software. Creators of this type of intellectual property are entitled to copyrights, which allow them to control how the property they created can be reproduced, sold, or distributed.

Another common type of intellectual property is an invention, which can be legally protected by a specially created right called a patent. Patented inventions are commonly thought of as machines, tools, and equipment; however, other types of patentable subject matter include processes, drug formulas, designs, and even genetically-engineered or special breeds of organisms such as plants. The holders of patent rights, once they are legally established through a government-specified process, have complete control of making and selling the invention for a certain number of years. The patent rights holder may make the patented invention exclusively, hire a company to make the invention for him or her, or may license his or her rights. Under a license agreement, other companies would pay the patent holder for the right to make or sell the invention.

Certain types of intellectual property, which include trademarks, trade dress, and trade secrets, are particularly important to businesses. Trademarks and trade dress go hand-in-hand and are used by businesses to present themselves to the public in a way that distinguishes them from other businesses. Trademarks are words, logos, slogans, pictures, or other symbolic devices that are used to identify a company and its products or services, whereas trade dress represents the totality of the image of a company and its products or services, which can include characteristics such as the shape and color of a package, the roofline or style of a restaurant, or the distinctive shape of a product. Finally, a trade secret can be any information that is not generally known that may give a business an advantage over its competitors. Unauthorized use of another company’s trademarks, trade dress, or trade secrets may allow the company that owns the particular intellectual property to sue for trademark infringement or unfair competition.

The right to publicity is a special type of intellectual property that allows a human being to control the commercial use of his or her name, image, or other physical attributes such as voice. The term “human being” is used purposefully to distinguish the human person from other legally recognized persons such as corporations, which do not have a right to publicity. A company cannot use a human person’s name or image without his or her permission.